Archive for the ‘Family Law’ Category

Child Custody in Nigeria FAQ: Who Owns The Child? II

February 9, 2017

‘Ownership’ of children is a feature of many customary laws in Nigeria.

Customary laws vary from one tribal group to the other. In some Igbo-Nigerian communities payment of the bride price determines ‘ownership’ of children. In ‘An Anatomy of Female Power’ Chinweizu has previously argued that the payment of bride price in Nigeria does not entitle the payer to the woman but rather to the fruit of her womb and I agree with him.

Among some Igbo-Nigerian groups and in Umuaka where I come from and grew up in particular under tribal laws where a marriage is not formalised and a bride price is not paid any child a woman bears ‘belongs’ to her father’s house and enjoys full inheritance rights. Likewise, if a woman left or divorced her husband she had to repay him the bride price her paid or any children she had thereafter ‘belonged’ to him, no matter who was the biological father. However, these tribal laws have been held to be repugnant to natural justice, equity and good conscience and are not usually enforceable by the customary courts anymore. Likewise, tribal laws that deny mothers access or custody without a consideration of natural justice, equity and good conscience are repugnant. However, it takes a good knowledgable lawyer to make that argument before the court.

In Yoruba-Nigeria the practice was that a child could claim a right to inheritance so long as the father had acknowledged him during while the father was alive. Sharia law, which is classed as a customary law in the Federal republic of Nigeria, apparently privileges mothers in custody issues whether they were married or not.  Customary courts just like statutory courts have a lot of discretion and it all depends on the arguments they are presented to them.

Lagos State is the only state in Nigeria that has created a family court procedure to deal with disputes relating to guardianship, custody and adoption that is not related to matrimonial causes in its Child Rights Law 2007. So if you are in Lagos and are unmarried and have a custody matter that is the law to refer to.

Nevertheless there is still a lot of confusion regarding children that are born to parents that were never married under statutory or customary law. There is also an increase of children born to parents that are not married under statutory and customary law. There seems to be a presumption that once a father is named on a birth certificate as such it secures his ‘rights’ to the child. I figure the courts will be busy untangling those complications for a few decades to come.

I’ve heard from a lot of people that the Social Welfare Office’s, which are increasingly called upon to decide questions of custody and maintenance in cases where the parents were never married have been ruling that once a child is 7 years old the father can take custody. This is wrong and dangerous and needs to stop. The law remains clear that the best interest of the child is paramount in deciding custody and neither parent  is entitled to automatic custodial rights. Both must show that they can meet the best interest of the child and not only that the other parent cannot.

In a decided case the father when asked what arrangements he had made for the children whose custody he was seeking said they would stay with his ageing mother in the village as opposed to staying with heir mother on the university campus where she lived and worked. The judge despite his conservative leanings ruled the children live with their mother even though he could not bring himself to grant her custody.

Perhaps the confusion lies in the meaning given to the word ‘custody.’ Custody is not ownership. We’ll consider ‘custody’ in my next post. I’m already over my 500 word limit. Or guideline.

Chao

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Child Custody in Nigeria FAQ: Who Owns The Child?

February 7, 2017

First of all we really need to stop thinking in terms of ‘ownership’ of children. Children are not chattel. You do not own a child. They are little people. Dependent little people and adults are parents, guardians, care takers and providers. Not owners.

That said what people usually mean when they ask that question is who gets ‘custody’ when the parents of a child are separated, divorced or even never married. Or who the child lives with because the parent a child lives with will influence the child’s future behaviour and personality.

Both parents have an equal right to raise, influence and make decisions for their juvenile offspring. (Nwosu vs. Nwosu [2012] 8 NWLR) Where the parents are cohabiting there is no usually issue and in many households the father assumes the role of head of household and makes decisions for everyone else with or without consulting his wife, the mother. It all depends on their personal dynamics.

Custody issues arise where either party wants to leave or end the relationship between the parents of a child or children. In Nigeria most men seem to think that they ‘own’ the children and presume that they will get custody especially of male children. Then again most men seem to think they own their wife too.

Both the Matrimonial Causes Act and the Child’s Right Act are clear that issues of custody are to  be decided in the best interest of the child and the courts have held that neither parent has an automatic right to custody.

If you are in a statutory marriage (that is one registered at the Marriage Registry and issued a Federal Government Certificate) and want a divorce, judicial separation or nullification of that marriage and believe that the best interest of the children is served with you or a woman in a violent abusive marriage that stays because you won’t leave without your children here is what your lawyer needs to do;

  1. After drafting and filing our petition for judicial separation, divorce or nullification and being assigned a court BEFORE serving your spouse your lawyer should file an exparte motion (known as an interlocutory relief) for temporary custody pending the determination of the petition AND a motion on notice for temporary custody simultaneously.
  2. The court will hear the ex parte motion and make a ruling which will be served on your spouse (The Respondent) with the notice of petition and the motion on notice for the same interlocutory relief asked for in the ex parte motion. The court will set a date before the exparte ruling expires in 7 days to hear the motion on notice thus giving the respondent a chance to challenge your request to the court for custody pending the determination of the main petition.
  3. After hearing the motion on notice and the respondents answer the court will either uphold its previous ruling or make a new one. This ruling is only binding till the matrimonial matter before the court is decided and then the issue of custody will be considered again and a final ruling be made at the end of the trial.
  4. Either party to a matrimonial petition can apply for an interlocutory order for custody.

The court will seek to determine what is in the best interest of the child and will consider the child’s age, gender, special needs, living environment, child care arrangements, plans to further the education of the child, financial ability of parent proposing arrangements, and the parents temperament and lifestyle. However, financial privilege alone is not enough determinant of a child’s best interest. (Nwosu vs. Nwosu)

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Interim Child Custody Order Under Matrimonial Causes Act in Nigeria

November 22, 2016

Section 71 of the Matrimonial Causes Act is clear that the ‘courts shall regard the interests of the children as the paramount consideration when awarding custody of children in a matrimonial cause under the MCA.

This is supported by extensive case law.

The Supreme Court in WILLIAMS V WILLIAMS (1987) LPELR-8050 set out the principles on which custody is decided clearly;

“(1) Where in any proceedings before any court the custody or upbringing of a minor is in question, the court in deciding the question shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father in respect of such custody is superior to that of the mother or the claim of the mother is superior to that of the father.

In Nwosu v. Nwosu (2012) 8 NWLR Pt 1301 – the court of appeal further held –

On the right of parents over custody of children of a marriage

The Court held both parties have equal rights in matters of custody of the children. In other words a mother has equal rights with the father over the children. In the instant case the appellant had equal legal interest in the children of the marriage and a right to protect that legal interest.

On Equal Rights of parents over custody of the children of the marriage

In regard to custody or upbringing of a minor a mother shall have the same rights and authority as the law allows the father and the rights and authority of the mother and the father shall be equal and exercisable by either with out the other.

One of the questions that the court of appeal considered was whether or not the appellant (mother) had a right to take the children away from the matrimonial home before a formal order of custody made by a court of competent jurisdiction to determine the issue of custody.

The respondent (father) had asked an Owerri High Court to declare his wife did not have the right to remove the children from their school and relocate then elsewhere without a prior order of the court. The court of first instance sought to compel the mother to return the children till a determination of custody.

The mother appealed the judgement and her appeal was upheld. The court cited the previous Supreme Court ruling in Williams v. Williams (1987) that held both parents have the same right to custody of children pending a custody hearing.

“The law would be an ass indeed if a parent who has inherent legal interest in the children can’t do something to protect the children before the law can take its course” said Ogunwumiju JCA in his lead judgement in Nwosu v. Nwosu.

The court upheld a mother’s right to remove herself and her children from the matrimonial home in the event of  breakdown of the marriage, threat or fear violence and maintaining status quo ante bellum pending matrimonial proceedings.

Counsel for the respondent (father) went on to argue the children of the marriage were of ‘Igbo extraction’ and their father ‘rich and willing to have them around’. The court held that “the reasons given by the learned trial judge in arriving at the conclusion that the appellant (mother) had no legal right to take the children from the matrimonial home were unconstitutional”

“I have no hesitation in arriving at the conclusion that these declarations of the rights of the parents in relation to these children were based on a wrong premise which is that the rights of a very rich father are superior to the rights of the less affluent mother who is from a different tribe. There is discrimination on the basis of tribe, sex and financial means.” – Ogunwumiju JCA

In Tabansi v. Tabansi (2009) 12 NWLR Pt 1155 the lead judgement of the Court of Appeal delivered by Alagao JCA held that

“Except the conduct of the wife is morally reprehensible it is better in an estranged marriage for the child of the marriage, more so if that child is a girl of tender age to be left in the care and custody of the wife.”

A party to matrimonial proceedings can simultaneously file an ex parte motion for interim custody when filing a petition under the MCA under Order 14 Rule 23 (1)(c) which provides that;

23(1) “Where proceedings for ancillary relief have been instituted  seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of the marriage pending the disposal of proceedings , the court may in a case of urgency, hear the proceedings, and make an order in the proceedings, ex parte.”

When filing an ex parte motion (which basically means that the applicant is asking the court to make a ruling without notifying the respondent, the other party in the matter) support it with an affidavit of urgency and also file a motion on notice with the same requests and arguments that will be served on the respondent while the interim order is in effect. And interim order will last for 7 days and within that time the court will want to invite the respondent to come and give his or her side of the story too. If the interim order lapses before the motion on notice is heard or decided the applicant’s lawyer can and should make a further oral application to the court to extend the life of the interim order.

This interim order will provide the legal basis for the applicant to retain custody of the children pending hearing of the motion on notice which will decide custody pending the resolution of the substantive suit which may be for divorce, nullity or judicial separation. The interim order will them be served together with the notice of petition and the motion on notice on the respondent.

Once an order is secured give the applicant the original copy and they can move with the children without fear of the other party taking them away or causing other mischief (like reporting to police they were kidnapped as some parents erroneously do) The applicant can prevent the respondent, the other party in the suit from taking the children forcibly away from him or her and should that party do so they will be in contempt of a court order.

Buhari Admonishes The Judiciary on Their Role in Fight Against Corruption

July 19, 2016

Buhari called on the judiciary to support the fight against the war of corruption yesterday.

Everyone deserves the best defence possible. Even the corrupt. That is the basis of our entire legal system.  Entitled to a legal defence to all accusations. A defence lawyer would not be ethical to do otherwise. And that includes using legal delay tactics.

The judiciary nevertheless has very wide discretionary powers.

However I put the blame squarely on the prosecution, and they are supposed to be the presidents men. A good prosecutor should anticipate and compensate for these delay tactics but frequently deploy their own. It should also hold the judiciary accountable and appeal any decisions that they feel are improperly given.

Our prosecutors lack the modern efficient prosecutorial skills.

An example from my family law practice.

Our client was sued for a divorce. We saw a defect in the form of the petition and asked for the case to be dismissed via a motion. It took 5 adjournments and more than 6 months to get the judgment. The case was dismissed and the petitioner quickly filed a new case in the same court before we could.

On the day we file our response, the petitioner purports to withdraw the case file and file a new one with a motion for substituted service (which we had previously decided to ignore to proceed speedily with the case.) This took another 3 months to sort out. Then we find out he didn’t properly withdraw the first suit, so there are two suits outstanding. Its taking another 3 months.

I see the same kind of unpreparedness in criminal prosecutors. Me and my client just want to get on with it. Its been almost a year. We have not had a hearing on the substantive issue.

I always win my cases because I am over prepared. Never lost a case in Nigeria. When I filed a suit against Shell BP in 2001 the Senior Advocate of Nigeria SAN that came to defend them in the Federal High Court in Umuahia entered appearance without protest. The court workers hail me no be small. They said it had never before happened. Hopefully not so much now.

My rather unscientific assessment is many lawyers are too quick to file a suit without proper research and investigation, do not do enough pre-trial strategy development, and rely too much on rhetoric and connections in the judiciary. After all, they all get paid per appearance. And the overstretched judiciary plays along.

(In 2016 Nigerian judges still record entire trial proceedings in long hand.)

The solution?

  1. Training and capacity building. For the prosecutors and the judges. I wonder what they would say if we asked them the last time they went for training and how/if they apply those skills now.
  2. Upgrade and investment in judiciary infrastructure. This may also require legislation.

Nigerian Case Law on Child Custody

June 11, 2016

I’ve received a lot of enquiries on custody of children in Nigeria and decided to write an update with some decisions made by the courts.

In Nwosu v. Nwosu (2012) 8 NWLR Pt 1301 – the court of appeal held –

On the right of parents over custody of children of a marriage

The Court held both parties have equal rights in matters of custody of the children. In other words a mother has equal rights with the father over the children. In the instant case the appellant had equal legal interest in the children of the marriage and a right to protect that legal interest.

On Equal Rights of parents over custody of the children of the marriage

In regard to custody or upbringing of a minor a mother shall have the same rights and authority as the law allows the father and the rights and authority of the mother and the father shall be equal and exercisable by either with out the other.

One of the questions that the court of appeal considered was whether or not the appellant (mother) had a right to take the children away from the matrimonial home before a formal order of custody made by a court of competent jurisdiction to determine the issue of custody.

The respondent (father) had asked an Owerri High Court to declare his wife did not have the right to remove the children from their school and relocate then elsewhere without a prior order of the court. The court of first instance sought to compel the mother to return the children till a determination of custody.

The mother appealed the judgement and her appeal was upheld. The court cited the previous Supreme Court ruling in Williams v. Williams (1987) that held both parents have the same right to custody of children pending a custody hearing.

“The law would be an ass indeed if a parent who has inherent legal interest in the children can’t do something to protect he children before the law can take its course” said Ogunwumiju JCA in his lead judgement in Nwosu v. Nwosu.

The court upheld a mother’s right to remove herself and her children from the matrimonial home in the event of  breakdown of the marriage, threat or fear violence and maintaining status quo ante bellum pending matrimonial proceedings.

Counsel for the respondent (father) went on to argue the children of the marriage were of ‘Igbo extraction’ and their father ‘rich and willing to have them around’. The court held that “the reasons given by the learned trial judge in arriving at the conclusion that the appellant (mother) had no legal right to take the children from the matrimonial home were unconstitutional”

“I have no hesitation in arriving at the conclusion that these declarations of the rights of the parents in relation to these children were based on a wrong premise which is that the rights of a very rich father are superior to the rights of the less affluent mother who is from a different tribe. There is discrimination on the basis of tribe, sex and financial means.” – Ogunwumiju JCA

In Tabansi v. Tabansi (2009) 12 NWLR Pt 1155 the lead judgement of the Court of Appeal delivered by Alagao JCA held that “Except the conduct of the wife is morally reprehensible it is better in an estranged marriage for the child of the marriage, more so if that child is a girl of tender age to be left in the care and custody of the wife.”

Supreme Court Uphold’s Women’s Inheritance Rights in Igbo Nigeria

April 25, 2016
The Supreme Court on Monday, April 14, voided the Igbo customary law, which denies daughters inheriting their fathers’ estate. The Supreme Court said it was discriminatory and in conflict with the 1999 Constitution of the Federal Republic of Nigeria.
It is a verdict that would have far-reaching effects in addressing a dehumanising tradition, which can no longer be excused in a modern, democratic society such as ours. It is a practice that regarded women as lower than men.
The judgment was given in a family dispute between Gladys Ada Ukeje, who was disinherited from the estate of her deceased father, Lazarus Ogbonna Ukeje. She sued her step-mother, Mrs. Lois Chituru Ukeje and her son, Enyinnaya Lazarus Ukeje.
A Lagos High Court, the Court of Appeal and the Supreme Court all reached the same decision. They confirmed that Gladys was qualified under the laws of Nigeria to inherit her father’s estate. The verdict should settle this matter forever in favour of all daughters in all corners of the country to claim their birthright, which they had been denied.
Justice Bode Rhodes-Vivour, who read the lead judgment stated, “No matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father’s estate. Consequently, the Igbo customary law, which disentitles a female child from partaking in the sharing of her deceased father’s estate, is a breach of Section 42(1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian”.

FREE MARRIAGE ADVICE ON FRIDAY FEBRUARY FOURTEENTH

February 11, 2014

FEBRUARY 14 – Valentine’s Day. Lover’s day, the day of Love. I did the hand made cards, anxious hearts, chocolates and roses when I was young. Now I’m mildly embarrassed at my younger self.  Every time my new hormones reacted to the pheromones and fine genetic features of a male of my specie I thought  myself madly in love.

What is love?  Some people think love is the bond between mother and child, some think its the sexual attraction you feel when you meet some body, some people say that love is a verb – how you act towards some body.  Some people think its spiritual, metaphysical, magical, other worldly, inexplicable. Even the Bible says so, right?

I was as confused as everyone else till I read the January 2008 Time issue on the science of love. My life has never been the same. You can read a pretty good summary here. I wish someone had explained love to me a bit earlier. I can be melodramatic and intense. But I wrote some great poems in those days of ignorance. Find one here.

Some women are waiting for someone to send them a royal Valentine hamper from Fortnum’s or  buy them a trip to Dubai. Some will be happy to get dinner, a card or a plastic rose. Guys are running, avoiding phone calls. Runs babes are sorting the Big Boys from the men. Lots of boys and girls are regularly disappointed on Valentine’s Day.

According to a 2011 report more divorce petitions are filed in the US the day after Valentine’s Day than any other day in the year. In the absence of reliable records I’m going to track my blog stats to see whether I get more search engine hits and enquiries on ‘divorce in Nigeria’ on that day too. Is there more discontent in the air?

I’m a scientific kind of female.

“Events occurring in the brain when we are in love have similarities with mental illness.”

Don’t we all know that feeling?

So which do you think you are feeling? Lust? Attraction? Attachment? Or is it just plain need and fear that’s keeping you in bondage in a loveless abusive relationship? Abuse isn’t only physical. If your spouse constantly creates an atmosphere of rigid control and terror you may be in an abusive relationship. Even if he is providing everything.

Will your relationship or marriage survive Valentine’s Day?  Will that slap you receive, literal or figurative, when you innocently ask what he got you for Valentine’s be the final straw that makes you say ‘enough is enough’.  Will you finally realize that his isolating you from family and friends is abusive behaviour?

I’ll have a tweet meet @MzAgams on February 14th and 15 give some heartfelt and sincere marriage advice to the many broken hearts that may finally decide on Valentine’s Day – the day of love – they deserve better than an abusive spouse.  I’ll answer all your questions about family law, matrimonial causes and child custody issues. Is 8pm good?

 

Joy Osadolor Tells Her Story in Her Own Words, Its an Eye Opener

January 7, 2013

I met Joy begging in Abuja one night with her baby. I asked her why, she doesn’t look like someone that has to beg. Joy is from Benin in South West Nigeria. Her story is so typical it could be the story of every Nigerian woman. Her husband abandoned her with 3 children and a fourth one on the way. Listen to her story. You will cry.

She’s not posh, or educated, she sounds more like a bad Nollywood script sometimes but she is the average Nigerian woman, the uneducated, urban dwelling women who struggle to raise children and keep their husbands by their side each day.

Her determination, her spirit, her persistence and ultimately her courage are what endear her to me and make me want to help her. We’ve taken her to the Ministry of Women Affairs, WRAPA and to MTN Foundation. She does not meet the criteria for any of their programs.

All I’ve done all I can do right now is bring her story and her begging to the internet. So maybe she won’t have to stand on the streets at night (the only time she can come out as she explains) vulnerable to abuse and exploitation, though I doubt she is that easily exploited.

We have helped her open a bank account, the first in her life. If you are moved to help her please make a direct contribution to her. She says she needs money to resume her domestic fuel business and send her children back to school.

If you are in Nigeria you can make a donation to Joy’s account

Account Name: Joy Osadolor
Bank: GTB Plc
Account Number: 0121071317

If you wish to speak to Joy or make a donation from abroad you can email me at lesleyagams@yahoo.com

You can also visit my site for more information about my work in Nigeria http://www.lesleyagams.com

Dealing With A Divorce in Nigeria

December 27, 2012

You  finally did it you took the plunge you files a divorce petition against that no good cheating night crawling broke ass violent abusive spouse of yours. So why are you feeling blue? Why are you crying at the slightest ting like a woman a hormonal imbalance? Why are you avoiding people and places? Why you hiding out at home in your negligee or wrapper or sweats or whatever you wear watching cheesy soap operas? Why are you moping around like someone died? Shouldn’t you be out celebrating with the girls or the kids or the family or someone?

Of course not, you are and you should be grieving. When you walked down the aisle, whether literally or figuratively you intended it to be a lifetime partnership, I’m sure you didn’t plan for it to be for a while. Right?  Okay some of you might have. Doesn’t matter. Even if was just a pretend marriage you had to have developed some attachment to your spouse. Even if it was just sexual or a codependency or you’re a socio-path. Okay?

Your relationship, your codependency, your marriage just ended. It is like a death. In my former practice at the women’s abuse shelter we counselled all women that went through our program to allow themselves at least a year to grieve and heal before even considering a new relationship if they were considering one at all.  Sound advice still. You will go through the five stages of grief and it will impair your judgement  some folks more than others.  Remember that. Don’t make too many life changing decisions right now if you can avoid it.

Find out about what’s happening to you right now and how to help yourself. Follow this link to some on line resources on grief management. If you understand what’s happening to you it will be easier to get through the process safely and without bitterness, rancour or other life sapping negative emotions that your soon to be ex-spouse would be only too glad to know you have to distract you from your purpose which should be to live the best life that you possibly can.

I’m sure the sociocultural environment of Nigeria won’t help but there isn’t much I can do about that  from here.  Surround yourself with people that support you right now.  When you are stronger you can deal with the rest.  For many of you this will be the hardest part, breaking free and through the endemic social inhibitions and institutions that will challenge your right and your choice every step  of the way to kingdom come.

Grief is a physiological process, you cant get away from it, learn to use it positively to grow.

Be well

 

What You Need To Do Before Getting A Divorce in Nigeria

December 24, 2012

Once you’ve made up your mind to get a divorce here are the next ten steps you should take

1. Plan where you r going to live. If you want custody of the children the court will demand to know how and where you with live with them. In some cases the courts have accepted a woman’s parents residence but almost never if you are living with anyone else.

2. Start saving money, you will need all the money you can get whether you are expecting to live on your own or with your children.  And divorce proceedings can get expensive.

3. Get a job if you don’t have one. To get custody the court will demand you show proof of work.

4. Calculate /track your living expenses for 3 to 6 months with receipts etc.

5. If you cannot work or get a job you must be able to demand maintenance from your spouse especially if your spouse prevented you working.  Gather evidence to prove this.

6. Make copies of all important documentation like marriage certificates, children’s birth certificates. Any properties you own together that you believe you have a substantial claim or interest in

7. Consider whether you were married in church and which one, in a registry or a traditional ceremony or a combination of the 3.  If you were married in the Catholic Church or the Anglican Church your marriage comes under statutory law even if you did not go to a registry.  Your lawyer will  file in the High court. If you married in any of the other churches you should ask them. I’ll get information on all churches that qualify asap and post to the blog. If its a traditional ceremony only then customary and tribal law applies.  You’re petition will be filed in a customary court. Look for a lawyer whose expertise is there

8. Make a short-list of lawyers to see in your locality. Get names by word of mouth, on-line or through legal articles. Go and interview each of them. Make sure they understand the particular law as it relates to you and are sympathetic with you. If their first response is to advice or insist on reconciliation move on.  Do not go with your evidence for the first meeting. Assess the lawyer before making a commitment.

9. If you’re satisfied that the lawyer will act in your best interest to secure a divorce/ separation for you and get custody for you then go and give him photocopies of all your evidence for assessment.  Create your own file to keep at home. This when you should pay your retainer fee and sign an agreement with your lawyer.

10. If you want to claim maintenance or even division of property you will need evidence of your spouses income and assets.  This will include salary slips, bank statements, property deeds etc. Make sure you get copies of all these things if they are available.

10. Talk to your family and your friends and your pastor before deciding on a divorce. Only go see a lawyer after you’ve decided that you want a divorce or separation. I’ve met lawyers that believe their personal ‘calling’ is to reconcile divorcing couples. I do not.

Don’t go to a lawyer unless your decision is made. Its not the lawyer’s job to help you decide one way or the other really or to advise you whether or not to get a divorce. The decision is yours,  a lawyers job is to make it legally possible for you to achieve your aim with the full protection of the law.  So help your lawyer help you.  Take these steps first.

Of course there are times when the decision to leave is abrupt and you cannot be prepared. If your life is in danger you must put your safety first.

 

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